Legal News

The Wage Discrimination Bills: Good for the Trial Lawyers?

By Dan Slater

It’s employment discrimination day inside The Beltway. This morning, the Democratic-led House took up two wage discrimination bills, according to the AP.

Lilly Ledbetter addresses the Democratic National Convention, Aug. 26, 2008. (AP/Ron Edmonds)

One is the Lilly Ledbetter Fair Pay Act, an effort to overturn the Supreme Court’s ballyhooed decision that shut down Lilly Ledbetter’s employment discrimination claim. (For LB background, see here.) In short, Ledbetter accused Goodyear of sex-based pay discrimination. At issue was the time limit for filing. The Court held that she should’ve filed her claim within 180 days of “the alleged unlawful employment practice” — the initial decision to pay her less than men performing similar work.

The new bill would codify Ledbetter’s theory that each paycheck resulting from discrimination constitutes a new violation, extending the 180-day statute of limitations. The court’s ruling is impractical, Ledbetter argues. “”This ruling just doesn’t make sense in the real world,” she reportedly said at a news conference yesterday. “In a lot of places you could get fired for asking your co-workers how much they are making.”

Critics, such as the WSJ editorial board, say the bill amounts to an earmark for trial lawyers. Today, the ed board weighs in on the statute of limitations issue:

[The Supreme Court’s] ruling put to rest Ms. Ledbetter’s creative theory that decisions made decades ago by a former boss affected her pay all the way to retirement, so that each paycheck was a new discriminatory act and thus fell within the statute of limitations. Yet that is exactly the theory Congress would now revive with the Ledbetter bill. There would no longer be time limits on such discrimination claims. They could be brought long after evidence had disappeared or witnesses had died — as was the case with Ms. Ledbetter’s former boss.

For the tort bar, this is pure gold. It would create a new legal business in digging up ancient workplace grievances. . .

The Paycheck Fairness Act, explains the AP, seeks to close loopholes in the 1963 Equal Pay Act by making clear that victims of gender-based discrimination can sue for compensatory and punitive damages. It also, among other things, puts the burden on employers to prove that any disparities in wages are job-related and not sex-based.

House Dems passed both bills in the last Congress, but they were blocked in the Senate. With at least seven more Democrats set to join the Senate, they’ve got a shot of getting through, writes the ed board.

LB Readers: Any civil procedures gurus out there? Was the Supreme Court’s take on the statute of limitations issue the right one?

Full post as published by Law Blog - WSJ.com on January 09, 2009 (boomark / email).